FC: Cato: Free speech means nixing both censorship and "privacy" laws

[Declan McCullagh <declan () well com>]

********

Date: Thu, 9 Aug 2001 09:27:57 -0400
Subject: Cato study: Arguments used against censorship apply to privacy
From: "Jerry Brito" <jbrito () cato org>

CATO INSTITUTE NEWS RELEASE

August 9, 2001

ARGUMENTS USED AGAINST CENSORSHIP APPLY TO PRIVACY, STUDY SAYS
Pornography censorship, online privacy legislation unconstitutional for same
reasons

WASHINGTON—A number of prominent civil liberties organizations have fought
for free speech rights by challenging and defeating laws aimed at censoring
unsavory expression. Among these laws were the Communications Decency Act
and the Child Online Protection Act. But a new Cato Institute study finds
that these organizations are now advocating regulation of another kind of
speech--commercial speech on the Internet.

In the new Cato Institute study, "Internet Privacy and Self-Regulation:
Lessons from the Porn Wars," Chapman University law professor Tom W. Bell
shows how the winning arguments made about decency laws should also apply to
proposed privacy legislation that seeks to regulate commercial speech,
including the sharing of user data collected by Web sites.

Bell writes that the American Civil Liberties Union, the Electronic Privacy
Information Center, and the Center for Democracy and Technology successfully
challenged the constitutionality of legislation restricting Internet speech
classified as indecent or harmful to minors. They did that, he says, "by
arguing that the availability of self-help alternatives disqualified such
laws as the 'least restrictive means' of regulating constitutionally
protected speech." Proposals to regulate Internet privacy merit the same
scrutiny, he says.

Arguments successfully used against decency legislation--for example, that
private alternatives to state action exist--also apply to privacy
legislation, Bell says. Much like the "self-help" software that allows
parents to filter offensive content, a wide rage of free or low cost privacy
protection software is available, he writes. "Such privacy-protecting
services differ in one crucial regard from services that try to filter out
offensive speech: they work better."

In addition, Web site users often say one thing and do another, belying any
real privacy crisis. According to Bell, polled Internet users indicate they
are concerned about their online privacy and would act to protect their
information. What they actually do is different, he says, supplying personal
information in exchange for Web site access among other things. Impressed by
the polls, however, Congress is entertaining several privacy bills and
President Bush has indicated he would sign them.

In both the communications decency and privacy debates, Bell says, "the
availability of self-help alternatives renders state action suspect on
constitutional and policy grounds. The same activist organizations that
argue against legislation restricting Internet speech that is indecent or
harmful to minors should reconsider their demands for privacy legislation
that would restrict speech by commercial entities about Internet users."

Cato Briefing Paper no. 65 (http://www.cato.org/pubs/briefs/bp-065es.html)

Contact:
Tom Bell, associate professor, Chapman University School of Law,
718-628-2503, tomwbell () tomwbell com

Adam D. Thierer, director of telecommunications policy studies,
202-789-5211, athierer () cato org

Jerry Brito, manager of media relations, 202-218-4621, jbrito () cato org

The Cato Institute is a nonpartisan public policy research foundation
dedicated to broadening policy debate consistent with the traditional
American principles of individual liberty, limited government, free markets
and peace.




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